In re Bustamante

• Decision Date: 23 November 2016
• Docket Number: No. 04–16–00333–CV,04–16–00333–CV
• Citation: 510 S.W.3d 732
• Parties: IN RE Cleo BUSTAMANTE, Jr.
• Court: Texas Court of Appeals

510 S.W.3d 732

IN RE Cleo BUSTAMANTE, Jr.

No. 04–16–00333–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: November 23, 2016

Grant E. Adami, III, Paul D. Huckabay, Adami, Shuffield, Scheihing & Burns, P.C., San Antonio, TX, Sean Higgins, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Houston, TX, for Appellant.

Daniel Dutko, Hanszen Laporte, Houston, TX, Jose J. Ruiz, Ruiz, Ritchie & Flores, P.C., Eagle Pass, TX, for Appellee.

Sitting en banc: Sandee Bryan Marion, Chief Justice, Karen Angelini, Justice, Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Jason Pulliam, Justice

OPINION

Opinion by: Marialyn Barnard, Justice

Relator, Cleo Bustamante, Jr., filed this petition for writ of mandamus complaining the trial court erred by: (1) refusing to rule on his motion for summary judgment; and (2) denying his motion for leave to designate responsible third parties. We hold the trial court clearly abused its discretion by denying the motion for leave to designate responsible third parties and an appeal does not provide an adequate remedy for this error. Therefore, we conditionally grant mandamus on this issue. We do not reach the complaint regarding the motion for summary judgment.

BACKGROUND

On September 22, 2010, Roberto Fernandez, while in the course and scope of his employment for Cleo Bustamante Enterprises, Inc. ("CBE"), was injured when a vehicle driven by Irasma Estrada Riojas struck him and pinned him against the wall of the Cleo Convenience Center where Fernandez worked. On September 21, 2012, one day before the statute of limitations expired, Fernandez and his wife filed suit against a number of defendants, including Bustamante, but did not sue either Riojas, with whom Fernandez had settled, or CBE, through whom Fernandez had received workers' compensation.² On October 4, 2012, Bustamante answered with a general denial.

On October 26, 2015, Bustamante filed a motion for leave to designate Riojas and CBE as responsible third parties pursuant to section 33.004 of the Texas Civil Practice and Remedies Code. The Fernandezes filed an objection to the motion for leave on November 10, 2015. In their objection, the Fernandezes argued that the motion should be denied because it was filed after the statute of limitations had expired and because Bustamante had failed to timely disclose that CBE or Riojas were potential responsible third parties.

The motion for leave was heard on April 20, 2016. At the hearing, the Fernandezes argued that Bustamante had not disclosed CBE and Riojas as potential responsible third parties in response to the Fernandezes' requests for disclosure; therefore, Bustamante was barred from designating them as responsible third parties. Bustamante pointed out the Fernandezes were already aware of the existence and potential liability of CBE and Riojas. Bustamante further argued the purpose of disclosure in regards to the designation of responsible third parties is to allow plaintiffs an opportunity to sue third parties before limitations expire, and this purpose was obviated because the statute of limitations expired the day after the Fernandezes filed suit. Because the Fernandezes did not file suit until the day before the statute of limitations expired, Bustamante contends he could not have timely disclosed any potential responsible third parties and, due to this impossibility, Bustamante had no duty to timely disclose potential responsible third parties. The trial court denied Bustamante's motion for leave, and this mandamus ensued.

MANDAMUS STANDARD

Mandamus relief is an extraordinary remedy and will issue only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable that it constitutes a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding); Walker , 827 S.W.2d at 840. A trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled. Prudential , 148 S.W.3d at 135.

DID THE TRIAL COURT ABUSE ITS DISCRETION ?

We first consider whether the trial court abused its discretion by denying the motion for leave to designate Riojas and CBE as responsible third parties. To do this, we must determine if the motion for leave to designate was timely filed and, if so, was there a reason for the trial court to deny the motion.

A. Timely Designating Responsible Third Parties

The designation of responsible third parties is governed by Chapter 33 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE. ANN. §§ 33.001 –33.017 (West 2015). A defendant in a tort claim may designate as a responsible third party "any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these." TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (West 2015); Galbraith Eng'g Consultants, Inc., v. Pochucha , 290 S.W.3d 863, 868 (Tex. 2009). A motion for leave to designate "must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date." TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a). Bustamante's motion for leave to designate responsible third parties was filed prior to the 60th day before the trial date.

A defendant may not designate a person as a responsible third party after the statute of limitations has expired if the defendant failed to "comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure." TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(d). The timeliness limitation on a defendant's ability to designate responsible third parties is a procedural safeguard designed to prevent a defendant from " ‘belatedly pointing its finger at a time-barred responsible third-party against whom the plaintiff has no possibility of recovery.’ " In re CVR Energy, Inc. , No. 01–15–00877–CV, ––– S.W.3d ––––, 2016 WL 3544883, at *3 (Tex. App.–Houston [1st Dist.] June 28, 2016, orig. proceeding) (op. on reh'g) (quoting Withers v. Schneider Nat'l Carriers, Inc. , 13 F.Supp.3d 686, 689 (E.D. Tex. 2014) ). The statute does not, however, define the term "timely." The Fernandezes argue that, because Rule 194.2(l) includes the identity of a potential responsible third party as an item a party may request another party to disclose, "timely" refers to the time to respond to requests for disclosure under Texas Rule of Civil Procedure 194.3. Bustamante argues "timely" refers to a defendant's obligation to disclose a potential responsible third party before the expiration of the statute of limitations, if possible.

In the case now before this court, the Fernandezes filed suit the day before the limitations period expired, and included requests for disclosure with their petition. Under Texas Rule of Civil Procedure 194.3(a), Bustamante was required to respond to the requests for disclosure within fifty days of being served with the petition. TEX. R. CIV. P. 194.3(a). It is undisputed that Bustamante did not respond to the requests within fifty days of service. The Fernandezes argue Bustamante never responded and thus did not disclose the potential responsible third parties. However, Bustamante points to his responses to requests for disclosure propounded by a co-defendant, in which he listed Riojas as a potential responsible third party. Bustamante also testified in his deposition that Fernandez was employed by CBE, which leased the premises where the accident occurred, while Bustamante owned the premises. Bustamante further testified CBE was the general contractor for the design and construction of the building and parking lot at the premises where the accident occurred. Therefore, Bustamante argues, the Fernandezes were made aware of these potential responsible third parties. See TEX. R. CIV. P. 193.5(a)(2) (providing no duty to supplement discovery responses if additional information is made known to other parties "on the record at a deposition, or through other discovery responses").

The Fernandezes are, essentially, taking the position that a defendant loses the statutory right to designate responsible third parties if the defendant fails to respond to a request for disclosure of potential responsible third parties within the deadline contained in Rule 194.3. This is inconsistent with Texas Rule of Civil Procedure 193.6(a), which allows a party who fails to respond to discovery to introduce the undisclosed material or information into evidence if the party shows either (1) good cause existed for the failure to respond to the discovery or (2) the other party will not be unfairly surprised or unfairly prejudiced by the failure to timely respond. TEX. R. CIV. P. 193.6(a). To hold as the Fernandezes suggest would convert Rule 194.2(l) into a technical trap. A party who fails to timely respond to a request for disclosure of information regarding a person who may be designated as a responsible third party would lose the statutory right to designate responsible third parties, while a party that fails to respond to a request for disclosure of the information required by rules 194.2 (a)–(k) would not face such a penalty. We do not read Section 33.004(d) so narrowly. Instead, we read section 33.004(d) to require a defendant to disclose a potential responsible third party before the...